Bell v Hartnett Lawyers (No. 2) [2021] NSWSC 1270

Supreme Court New South Wales

Medium Neutral Citation: Bell v Hartnett Lawyers (No. 2) [2021] NSWSC 1270 Hearing dates: 23 March, 26 April, 27 May & 13 July 2021 Date of orders: 12 October 2021 Decision date: 12 October 2021 Jurisdiction: Equity - Applications List Before: Slattery J Decision: The plaintiff's solicitors' costs in the Possession proceedings will not be referred for costs assessment but will become the subject of a specified gross sum costs order. The plaintiff in the Equity proceedings is ordered to pay the costs of the Motion to set aside the originating process. Catchwords: COSTS – Costs assessment – Civil Procedure Act 2005, s 98(4) – a mortgagee ("the mortgagee") brings proceedings in 2014 for possession ("the Possession proceedings") of real estate of a deceased mortgagor ("the mortgagor") – the mortgagee appoints solicitor to act for her in the Possession proceedings – son of deceased mortgagor ("the son") evicted from mortgaged property – mortgagee also dies – no legal representative of her estate is appointed – mortgage debt is $33,000 – the mortgagee's solicitors' fees consume the bulk of the proceeds of sale of the mortgaged property, which are in excess of $352,137.02 - a balance of $33,792.46 remains for the mortgagor – son questions reasonableness of solicitors' fees in acting for the mortgagee and seeks referral to costs assessment – solicitor resists referral to costs assessment to a referee, or the making of a specified gross sum costs order – whether solicitors' fees should be referred for costs assessment – whether any referral for costs assessment should be under Queensland law in Queensland or in New South Wales under New South Wales law – whether Civil Procedure Act, s 98 orders are possible after one failed costs assessment and before another. MORTGAGES AND SECURITIES – Priorities – estate of deceased mortgagor entitled to equity of redemption in net proceeds of sale of mortgaged property – solicitor for mortgagee entitled to equitable litigation lien over proceeds of sale of mortgaged property – which equity is prior in time – issue not clearly raised on the pleadings – directions made for issue to be pleaded. CIVIL PROCEDURE – Service of originating process in equity proceedings ("the Equity proceedings") – where service of process is said to be defective pursuant to Uniform Civil Procedure Rules 2005 – where service failed to include a notice under the Service and Execution of Process Act 1992 (Cth) – the Court grants leave to serve originating process – what costs orders should be made. Legislation Cited: Civil Procedure Act 2005, ss 26, 56, 60, 98(4)(c) Legal Profession Act 2004, ss 305(b), 355(5) Legal Profession Act 2007 (QLD), s 335 Legal Profession Uniform Law: Uniform Law 2014 (NSW), s 264(1) Real Property Act 1900, s 57(2)(b) Service and Execution Act 1992 (Cth) Uniform Civil Procedure Rules 2005, Part 20, Division 3, rr 6.29, 6.32(d), 7.10, 7.10(2)(a)-(b), 10.34 Cases Cited: Adams v Bank of New South Wales [1984] 1 NSWLR 285 Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174 Atanaskovic Hartnell v Birketu Pty Ltd – Supervisory Jurisdiction [2020] NSWSC 573 Atanaskovic Hartnell v Birketu Pty Ltd (2021) 392 ALR 154 Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006 Bank of Western Australia Ltd v Marsh [2000] WASC 2008 Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 Boyce v McIntyre (2009) 78 NSWLR 152 Council of the NSW Bar Association v Siggens [2021] NSWCA 40 Deakin-Bell v NSW Trustee and Guardian [2016] NSWSC 540 Edgar & Walker v Mead (1916) 23 CLR 29 Gel Custodians Pty Ltd v Estate of the Late Geoffrey Francis Bell [2013] NSWSC 973 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738 Newell; Murinti v De Costi (2018) 97 NSWLR 390 Nicholls v Michael Wilson Partners Ltd (No 2) [2013] NSWCA 141 Nudd v Mannix [2009] NSWCA 327 Penson v Titan National Pty Ltd (No.3) [2015] NSWCA 121 Preston v Nikoladis [2017] NSWSC 1527 Re Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268 Road Chalets Pty Ltd v Thornton Motors Pty Ltd (1986) 47 SASR 532 Robert Anthony Bell v Beau Timothy John Hartnett Lawyers [2021] NSWSC 202 Watson Wyatt Superannuation Pty Ltd v Oberlechner & 2 ors (2008) ASC 155-091 Willmott v Barber (1881) 17 Ch D 772 Texts Cited: G Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) JP Hamilton, "Containment of costs: litigation and arbitration" (presentation, 1 June 2007) RP Meagher, JD Heydon, MJ Leeming, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Procedural rulings Parties: The 2014/354291 proceedings: